Thursday, January 01, 2009

I recently posted to SSRN a working paper, The Scale of Consent, a copy of which you can download here. Here's the abstract:

We often speak of consent in binary terms, boiling it down to "yes" or "no." In practice, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions. This working paper reviews how legal and other authorities regard consent, revealing that they treat consent as a matter of degree and a measure of justification. The scale described here plays a vital role in a larger project, one that will also explain consent's importance and apply graduated consent theory to such longstanding puzzles as the enforceability of standard form agreements, the justifiability of political coercion, and the meaning of a constitution. As a preliminary to that project, this working paper explains how consent and justification vary by degree and covary in value.

The working paper includes a number of illustrations that quickly sum up the core ideas; here's one:

As the abstract suggests, The Scale of Consent offers but one part of a larger writing project, tentatively titled, Consent by Degrees, A Theory, Explained and Applied. I spun off this working paper because Consent by Degrees was growing unwieldy and I wanted to get some feedback before committing it to print. I hope you will see fit to comment on it.

I'm excited about this foray into consent theory, which I think friends of liberty will find useful. I should note, however, that the theory of graduated consent I'm working up does not clearly support originalism, a theory of constitutional interpretation dear to many libertarians. We can debate that later, though. The Scale of Consent aims simply to build the theory's engine, leaving the chassis, the wheels, and the wild road trip for later.